Coded Texts Lead to Search for Drugs

Probable cause to search exists if there is a “fair probability that contraband or evidence of a crime will be found in a particular place,” under the totality of the circumstances. Based on the facts
in this case, two judges of the Court of Appeals found that there was probable cause for the police to search Jake’s car.

The dissenting judge held that although probable cause is not a high standard, “the government came nowhere close to meeting it here.” “Despite observing most of these meetings and assiduously wiretapping John’s phone, officers never saw a handoff of money or contraband, nor heard an explicit mention of drugs. In fact, they saw and heard nothing objectively suspicious.”

He was in sharp disagreement with the majority regarding the officers’ speculation that “food” was a code word for drugs. “Many people go to Costco to buy food. If talking about shopping for food at Costco were sufficient to justify a search, many of us would be searched by the police twice a week—thrice right before Thanksgiving.” He did not think it made any sense to conclude they were substituting “food” for “money” when talking about where to meet. “If John and Jake were meeting up to conduct a drug deal, why specify the purpose of the meeting? Why say ‘Let’s meet at Costco for a drug transfer’ rather than just ‘Let’s meet at Costco,’ with the purpose of the meeting understood?”

He was unimpressed with the conclusion that the word “tools” was a code for drugs. Although John was not involved in construction, he felt it was entirely reasonable that John would have borrowed some tools from Jake. “There was nothing remotely suspicious about the two men’s discussion of ‘tools.’”

The dissenting judge also found fault with the officers’ conclusion that wanting to meet where there were not a lot of people around proved that they were engaged in illegal activity. “The government commonly argues that drug dealers intentionally seek out busy locations because a ‘high volume of pedestrian and vehicle traffic can mask drug-dealing activity.’ Here, the government claims the opposite, evidently trying to have it both ways. At best, this fact is irrelevant: There was nothing incriminating about the two men’s preference for a quieter location.”

He found nothing to justify a search of Jake’s car, including Jake’s anger when told that his car had been involved in a robbery. “Since any innocent person might react that way, I don’t understand how his outburst suggests drug dealing. To the contrary, I should think that someone hauling drugs would be less likely to mouth off to the police. That Jake walked away emptyhanded from John’s truck suggests nothing at all about drug trafficking. The majority strings together a sequence of events like beads on a strand, but doesn’t explain how any of them provide probable cause that Jake was carrying drugs in his car when he was stopped.”

The dissenting judge ended with this quip: “This is a green light for the police to search anyone’s property based on what officers subjectively believe—or claim to believe—about someone’s everyday conduct. That puts all of us at risk. Accordingly, I dissent, and I’m off to Costco to buy some food.”

Despite the dissent, unless the Supreme Court intervenes, an unlikely prospect, Jake’s conviction stands and he will have to serve his 188 months in prison. United States v. Faagai, decided September 7, 2017.